Heed Not the Umpire (Justice Ginsburg Called NFIB)

14 Pages Posted: 8 Feb 2013

See all articles by Nicole Huberfeld

Nicole Huberfeld

Boston University - School of Public Health; Boston University School of Law

Date Written: January 29, 2013

Abstract

A bad reading of the facts in NFIB v. Sebelius has led to new limitations on Congress’s Commerce, Necessary and Proper, and Spending Clause powers. The decision appeared to use healthcare as a vehicle for constitutional change, leading to interpretive gymnastics that invite further litigation. This essay highlights the factual errors in Chief Justice Roberts’s and the joint dissent’s opinions and explains why Justice Ginsburg’s more fact-attuned opinion was the correct analysis of the case.

Keywords: Supreme Court, NFIB v. Sebelius, Medicaid, federalism, health reform

Suggested Citation

Huberfeld, Nicole, Heed Not the Umpire (Justice Ginsburg Called NFIB) (January 29, 2013). University of Pennsylvania Journal of Constitutional Law Heightened Scrutiny, Vol. 15, No. 43, 2013. Available at SSRN: https://ssrn.com/abstract=2213466

Nicole Huberfeld (Contact Author)

Boston University - School of Public Health ( email )

715 Albany Street
Boston, MA 02118
United States

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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